Citation Nr: 9824152
Decision Date: 08/10/98 Archive Date: 07/27/01
DOCKET NO. 94-09 719 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an increased (compensable) rating for
residuals of perforation of the left tympanic membrane.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran retired in September 1992 after more than 26
years of active service.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a November 1994 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma, in which the RO granted service connection for
residuals of perforation of the left tympanic membrane and
assigned a noncompensable rating. The veteran appealed the
rating and other issues to the Board. In a decision dated in
March 1998, the Board adjudicated multiple issues including
the issue of entitlement to an increased (compensable) rating
for residuals of perforation of the left tympanic membrane
and awarded a 10 percent rating for the disability based on a
finding of the presence of tinnitus. Subsequently, in a
decision dated May 12, 1998, the Board vacated the portion of
the March 1998 decision that addressed the issue of
entitlement to an increased rating for residuals of
perforation of the left tympanic membrane noting that prior
to the March 1998 Board decision the RO had awarded a 10
percent rating for tinnitus under Diagnostic Code 6260. This
decision addresses the issue of entitlement to an increased
rating for residuals of perforation of the left tympanic
membrane on a de novo basis.
Review of the record shows that in January 1968 during
service in Vietnam the veteran sustained multiple wounds when
a booby trap exploded. A narrative hospital summary shows
that during treatment the veteran underwent an exploratory
laparotomy; he was found to have a mid-stomach perforation
near the greater curvature, and this was closed. He was also
found to have a hematoma of the distal third of the pancreas.
During surgery, a tear was made in the splenic capsule
necessitating splenectomy. The RO has granted service
connection for the post-operative exploratory laparotomy scar
and for an incisional hernia. Although the record raises the
issue of entitlement to service connection for splenectomy,
there is no indication that the RO has considered that
matter. The Board notes that under the VA Schedule for
Rating Disabilities (Rating Schedule) as it was in effect at
the veteran's retirement from service in 1992, splenectomy
was rated as 30 percent disabling under 38 C.F.R. § 4.117,
Diagnostic Code 7706. Since that time the Rating Schedule
has been revised, and, as currently in effect, 38 C.F.R.
§ 4.117, Diagnostic Code 7706, prescribes a 20 percent rating
for splenectomy. A following note states that complications
such as systemic infections with encapsulated bacteria are to
be rated separately. The Board refers this matter to the RO
for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a separate compensable rating
should be assigned for residuals of perforation of the left
tympanic membrane. He contends that the injury from the
booby trap explosion perforated his left tympanic membrane.
He points out that his service medical records show that he
required surgeries on his left ear and that ever since then
he has had tinnitus and no hearing in his left ear, even
while wearing a hearing aid.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against assignment of a compensable rating for
residuals of perforation of the left tympanic membrane.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's claim has been obtained by the RO.
2. Post-operative residuals of perforation of the veteran's
left tympanic membrane include scarring in the external
auditory canal and a well-healed 1-centimeter scar behind
the left ear that is not more than slightly disfiguring
and is not symptomatic or productive of functional
impairment.
3. A separate noncompensable rating has been assigned for the
veteran's left ear hearing loss due to scarring in the
external auditory canal.
CONCLUSION OF LAW
A compensable rating for residuals of perforation of the left
tympanic membrane is not warranted. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.31, 4.87a, Diagnostic Code 6211,
§ 4.118, Diagnostic Codes 7800, 7803, 7804, 7805 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board notes that the veteran's
increased rating claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a) (West 1991) in that it is at least
plausible. The Board is satisfied that all relevant facts
have been properly developed and that no further assistance
to the veteran is required to comply with 38 U.S.C.A.
§ 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1997)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed the veteran's service medical records and all
other evidence of record pertaining to the history of the
perforation of the veteran's left tympanic membrane. The
Board has found nothing in the historical record that would
lead to a conclusion that the most current evidence of record
is not adequate for rating purposes.
Service medical records show that in January 1968 while in
service in Vietnam the veteran sustained multiple injuries
including perforation of the left tympanic membrane when a
booby trap exploded. Following an initial period of
hospitalization for treatment of soft tissue wounds and
fracture of the left ulna, the veteran was again hospitalized
from August 1968 to November 1968 for additional treatment.
In August 1968 he underwent a left myringoplasty using
temporalis fascia with canal skin through an endaural
incision. Sutures were removed six days postoperatively.
Packing was removed four weeks postoperatively, and following
this the ear canal was secondarily infected and was treated
with Cortisporin Otic. It was noted that the canal had
narrowed considerably and that approximately ten to twelve
weeks after the operation the canal was still narrowed and
the tympanic membrane appeared very thickened. It was felt
that this represented either a stenosis or mild keloid
formation in the ear canal and that the veteran would
probably require further surgery in three to four months.
Service medical records show that the veteran was
hospitalized from January to April 1970, and during that
time, in March 1970, underwent an exploratory tympanotomy to
determine the cause of conductive hearing loss in the left
ear. At surgery, it was noted that the middle ear was
completely filled with scar tissue and the graft that had
been previously placed was quite thick from scar tissue. It
was not possible to remove the scar tissue without possible
damage to the inner ear, and the surgery was terminated at
that point. Postoperatively, the conductive hearing loss
persisted in the left ear. The graft was well healed. Later
records show that the veteran was fitted with a hearing aid
on the left.
When the veteran was seen at an ear, nose and throat clinic
in November 1990, the physician noted that the veteran was
status post acoustic trauma to the left ear in Vietnam with
resultant tympanic membrane rupture and external auditory
canal trauma. The history included immediate hearing loss
with tinnitus. The physician also noted that the veteran had
subsequently undergone surgical procedures to excise scar
tissue of the external auditory canal, but there had been
recurrence of tissue. Examination of the left ear revealed
cicatrix along the mid aspect of the external auditory canal
completely covering the external auditory canal so that the
tympanic membrane and middle ear structures were not visible.
The assessment was moderate to profound mixed hearing loss,
left ear. In his report of medical history prior to his
service separation examination, the veteran stated that his
left tympanic membrane had been perforated, that he had no
hearing in his left ear due to scar tissue and now had
tinnitus. Diagnoses following the veteran's service
retirement examination in June 1992 included left ear hearing
loss due to scar, left tympanic membrane. In addition, the
veteran was noted to have a surgical scar behind the left
ear.
At a November 1992 VA ear disease examination, the veteran
gave a history of having been hit by shrapnel in 1968 and
having sustained a lacerated ear and a ruptured left eardrum.
He complained of hearing loss and constant tinnitus in the
left ear. On examination, the external ear showed a small,
well-healed scar on the left helix. The ear canal on the
left was totally stenotic, and the left drum was not seen.
There was no evidence of active infection, and there was no
dizziness. Diagnostic testing reportedly showed a mixed loss
in the left ear, mostly conductive. It was noted that the
veteran wore a hearing aid. The diagnosis included complete
stenosis of the left ear canal with mixed hearing loss
requiring left hearing aid, constant tinnitus left ear, and
well-healed scar on the left helix. At subsequent VA
examinations, the left helix scar was again noted along with
an approximately 1-centimeter scar behind the left ear from
prior surgery to the left tympanic membrane. At an October
1994 nose and sinuses examination, the post-operative scar
was noted to be well healed and was located just posterior to
the left mastoid. Also, the veteran continued to complain of
decreased hearing in the left ear and constant tinnitus.
Diagnoses included scarred left drum and middle ear, with
mixed hearing loss, and left constant tinnitus.
In a July 1993 rating decision, the RO granted service
connection for left ear hearing loss and assigned a
noncompensable rating effective from October 1992. The RO
also granted service connection for tinnitus and assigned a
10 percent rating, effective from October 1992. In the same
rating decision the RO granted service connection and a
noncompensable rating for shrapnel wound scars of the scalp,
legs, abdomen, left arm, hip and left ear. In a November
1994 rating decision, the RO granted service connection for
perforated tympanic membrane of the left ear and assigned a
noncompensable rating. The veteran's disagreement with the
noncompensable rating gave rise to this appeal.
At a hearing at the RO in March 1996, the veteran testified
concerning hearing problems with his left ear.
Disability ratings are determined by applying the criteria
set forth in the Rating Schedule found in 38 C.F.R. Part 4.
Further, the provisions contained in the Rating Schedule
represent, as far as can practicably be determined, the
average impairment in earning capacity in civil occupations
resulting from disability. 38 C.F.R. § 3.321(a). Under the
provisions of the Rating Schedule perforation of a tympanic
membrane warrants on noncompensable rating. 38 C.F.R.
§ 4.87a, Diagnostic Code 6211. The Rating Schedule provides
no higher rating for perforation of a tympanic membrane.
The veteran has been awarded the noncompensable rating for
residuals of perforation of the left tympanic membrane under
Diagnostic Code 6211. A separate noncompensable rating has
been assigned for his left ear hearing loss, which has been
found to be due to scarring from surgery associated with
perforation of the tympanic membrane. In addition, service
connection has been granted for left ear tinnitus associated
with the veteran's in-service injuries. A 10 percent rating
has been assigned for tinnitus under Diagnostic Code 6260.
The rating assigned for tinnitus is not currently at issue on
appeal. The Board in its March 1998 decision addressed the
veteran's increased rating claim concerning his left ear
hearing loss disability. Therefore, that issue is no longer
before the Board.
Under the Rating Schedule the only basis upon which a higher
rating could be assigned for residuals of the tympanic
membrane perforation would be impairment associated with the
post-operative scar behind the veteran's left ear. If
considered moderately disfiguring, a scar of the head, face
or neck warrants a 10 percent rating, while slight
disfigurement warrants a noncompensable rating. 38 C.F.R.
§ 4.118, Diagnostic Code 7800. Otherwise, a compensable
rating for scars (other than burn scars) requires that they
be poorly nourished with repeated ulceration, that they be
tender and painful on objective demonstration or that they
produce limitation of function of the affected body part.
38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805. In the
veteran's case, the post-operative scar behind his left ear
has been shown to be well healed, and there is no indication
that it is tender or painful or that it is subject to
ulceration. Also, there is no indication that the scar
imposes any functional limitation on the veteran. Further,
there is no indication that any examiner has evaluated the
scar as even slightly disfiguring. There is, therefore, no
basis in the record, for a compensable rating for the left
tympanic membrane post-operative scar behind the left ear.
An extra-schedular rating would be the only other basis on
which a compensable rating could be awarded for residuals of
perforation of the left tympanic membrane. In this regard,
in the exceptional case where the schedular evaluation is
found to be inadequate, the case may be referred to the Under
Secretary for Benefits or the Compensation and Pension
Service Director who are authorized to approve an extra-
schedular evaluation commensurate with the average earning
capacity impairment due exclusively to the service-connected
disability. 38 C.F.R. § 3.321(b) (1997). The governing norm
in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.
In determining whether this claim should be referred to the
Under Secretary for Benefits or the Compensation and Pension
Service Director, the Board must consider the average earning
capacity impairment due exclusively to the residuals of
perforation of the veteran's left tympanic membrane. Review
of the medical evidence dated after the veteran's separation
from service shows no occasion on which he was hospitalized.
In 1997, the veteran submitted a copy of his résumé showing
his post-service employment history. The résumé shows that
from 1992 onward he had worked as a substitute teacher at
various elementary schools and high schools and had worked as
a banquet captain at a hotel. The veteran has not claimed
that the residuals of perforation of the left tympanic
membrane has interfered with his ability to work, and the
Board finds no indication in the record that the tympanic
membrane perforation has interfered markedly with the
veteran's employment. The Board, therefore, cannot find that
the evidence warrants referral of this issue to the Under
Secretary for Benefits or the Compensation and Pension
Service Director for consideration of an extra-schedular
rating.
ORDER
An increased (compensable) rating for residuals of
perforation of the left tympanic membrane is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.